Case law

  • Case Details
    • National ID: C-343/12
    • Member State: European Union
    • Common Name:link
    • Decision type: Court of Justice decision
    • Decision date: 07/03/2013
    • Court: European Court of Justice
    • Subject:
    • Plaintiff: Euronics Belgium CVBA
    • Defendant: Kamera Express BV and Kamera Express Belgium BVBA
    • Keywords: black list, Scope of the UCP Directive – Full harmonisation, selling at a loss
  • Directive Articles
    Unfair Commercial Practices Directive, Whereas, (17)
  • Headnote
    Directive 2005/29 must be interpreted as precluding a national provision which provides for a general prohibition of offering for sale or selling at a loss in so far as that provision pursues objectives relating to consumer protection.
  • Facts
    Under Belgian law (articles  101-102 of the Belgian Market Practices Act), it is prohibited to "offer for sale or to sell goods at a loss". A sale at a loss is defined as "any sale at a price which is not at least equal to the price at which the undertaking purchased the item or which the undertaking would have to pay to replenish its stock, after any discounts granted and definitively obtained".

    The defendant, both electronics shops, sold products of which the plaintiff, also active in this industry, held that these were being sold in contravention of the rules on sales at a loss. The Belgian court for which the case was brought by the plaintiff, decided to stay the proceedings and to refer a question to the Court of Justice for a preliminary ruling:

    "Is Article 101 of the [Belgian Market Practices Act], which, inter alia, is intended to protect the interests of consumers contrary to [the Unfair Commercial Practices Directive] in so far as it prohibits sales at a loss, whereas [that] directive appears not to prohibit such sales practices and the Belgian Law may be stricter than the provisions of [that] directive and the prohibition under Article 4 of that directive?".

     
  • Legal issue
    Must Directive 2005/29 be interpreted as precluding a national provision which provides for a general prohibition of offering for sale or selling at a loss in so far as that provision pursues objectives relating to consumer protection?
  • Decision

    The Court notes that it is important to first establish whether the legal provisions at stake pursue objectives relating to consumer protection so that they come within the scope of the Unfair Commercial Practices Directive. In that regard, the referring court had already ruled that these regulations indeed are intended to protect consumers.

    Subsequently, the European Court investigates whether sales at a loss should be considered as commercial practices, hence fall under the scope of the Directive 2005/29. The Court holds that the practice of selling at a loss serves the purpose of attracting consumers to the business premises of a trader and encouraging them to make purchases. It therefore, so the Court holds, clearly forms part of an operator’s commercial strategy and relates directly to its promotion and sales development. It follows that it constitutes a commercial practice within the meaning of the Directive.

    Following these observations, the Court decides on whether this automatic prohibition under Belgian law is compatible with the Directive's provisions. As it has ruled in several other decisions, the Court again stresses that since the Directive fully harmonizes the rules relating to commercial practices, Member States may not adopt stricter rules than those provided for in the Directive. Moreover, the Directive establishes in its Annex I an exhaustive list of 31 commercial practices which are regarded as unfair "in all circumstances". Consequently, only those commercial practices can be deemed to be unfair without a case-by-case assessment against the provisions of the Directive. As the national provisions at issue do not appear in Annex I to the Directive, they cannot be prohibited in all circumstances, but can be prohibited only following a specific assessment allowing the unfairness of those practices to be established.

     

    URL: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62012CO0343:NL:HTML

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  • Result
    The Belgian legislation on sales at a loss, insofar this is held to be pursuing objectives relating to consumer protection, should be deemed incompatible with Directive 2005/29.